In April 2019, the South Australian Commissioner for Equal Opportunity presented the Attorney-General with a final review of the ‘Review of Harassment in the South Australian Legal Profession’.
This Review offered a damning insight into the prevalence of workplace bullying and harassment and its impact on individuals and the culture of the legal profession.
The fact that the legal professional is far from immune from unacceptable, unlawful behaviours is deeply disturbing. The legal practitioners do, after all, have a paramount duty to the administration of justice.
The Review evaluated the systemic issues within the profession and highlighted specific examples of this disturbing behaviour. At the completion of the Review, the Commissioner for Equal Opportunity made 16 specific recommendations to combat the various issues that were uncovered.
While this Review was specific to the South Australian Legal profession, the various findings are indicative of greater social issues that are present in all work places.
In light of the various recommendations stemming from the Review, it is important to understand what an individual can if they experience bullying or harassment within the workplace.
What is bullying?
Under section 789FD of the Fair Work Act 2009 (Cth), a worker is considered to be bullied if:
- a person or group of people repeatedly act unreasonably towards them; and
- the behaviour creates a risk to health and safety.
It should be noted that unreasonable behaviour includes victimising, humiliating, intimidating or threatening. Whether a behaviour is considered ‘unreasonable’ will depend on whether a reasonable person might see the behaviour as unreasonable in the circumstances. This is a fact driven enquiry.
Specific examples of bullying include (but are not limited to):
- behaving in an aggressive manner;
- teasing or practical jokes;
- pressuring someone to behave inappropriately;
- excluding someone from work-related events; and
- unreasonable work demands.
Finally, this unreasonable behaviour, for the most part, must occur repeatedly. That is, at least more than once. While this isn’t a catch all rule, it does provide some context as to whether behaviour would be classified as bullying.
What isn’t bullying?
A clear distinction needs to be made between what is and isn’t bullying.
Reasonable management action that’s carried out in a reasonable manner is not bullying.
For example, an employer or manager can:
- make decisions about poor performance;
- take disciplinary action; and
- direct and control the way work is carried out.
What is sexual harassment?
Sexual harassment is usually defined as unwelcome conduct of a sexual nature where a reasonable person would expect the person to feel offended, humiliated or intimidated. Sexual harassment is prohibited under the Sex Discrimination Act 1984 (Cth) and the Equal Opportunity Act 1984 (SA).
Examples of sexual harassment would include (but are not limited to):
- staring or leering at someone;
- making sexually suggestive comments or jokes;
- inappropriate advances of an employee on a social networking site; and
- intrusive questions about a person’s private life or physical appearance.
A sexual harassment complaint may be made against individuals and their employers.
However, it should be noted that employers are not automatically liable for their employee’s sexual harassment conduct, provided that the employer shows they have taken reasonable steps to minimise the risk of sexual harassment in the workplace.
For an employer to be considered to have taken reasonable steps, they should have a ‘lively and real interest’ in the discipline of sexual harassment. That is, more than just policies, procedures and training in place that prohibit sexual harassment.
What is discrimination?
Under section 351 of the Fair Work Act 2009 (Cth), discrimination is defined as follows:
- discrimination occurs in the workplace when an employer takes adverse action against an employee or prospective employee because of a protected attribute.
‘Protected attributes’ include the following:
- sexual orientation;
- physical or mental disability;
- marital status;
- family or carer’s responsibilities;
- political opinion;
- national extraction.
‘Adverse action’ includes the following:
- firing an employee;
- injuring the employee in their employment (eg not giving an employee legal entitlement such as pay or leave);
- changing the employee’s job to their disadvantage;
- treat an employee differently to others;
- not hiring someone;
- offering a potential employee different and unfair terms and condition for the job compared to other employees.
It should be noted that ‘adverse action’ isn’t always discrimination. That is, it is not discrimination if the actions:
- are allowed under state or federal anti-discrimination laws;
- are taken against an employee of a religious institution to avoid harming the organisations religious beliefs;
- do not relate to the protected attributes; or
- relate to the necessary requirements of the job.
What should I do if I experience bullying, harassment or discrimination?
If you have experienced a genuine incident of bullying, harassment or discrimination, you need to report it. Internalising the issue and hoping it will go away will only make things worse.
In the first instance, you should discuss your concerns with your boss or line manager. Your workplace should have internal policies and procedures to deal with such complaints.
In the event that your workplace does not adequately deal with the issue and your concerns, you also have the right to: –
- report bullying to SafeWork SA;
- make an application to the Fair Work Commission for a stop bullying order;
- make a complaint to the Equal Opportunity Commission (SA);
- make a complained to the Human Rights and Equal Opportunity Commission.